The KSM Trial Will Be Fair Enough
And military detention is legit, too.
The Obama administration's decision to prosecute Khalid Sheikh Mohammed in a civilian court has brought charges from across the political spectrum that his trial will be unfair and thus illegitimate. Critics have articulated three separate concerns. With care, the government can overcome them all. In three acts:
Some people worry that Mohammed will not get the "impartial jury" that the Sixth Amendment guarantees him. The Sixth Amendment does not require a jury ignorant of 9/11. It requires only that Mohammed's jurors not prejudge his guilt and that they be guided only by the law set forth by the judge and the evidence presented in court.
The president and attorney general did not help ensure an impartial jury when they commented on Mohammed's trial two weeks ago. Asked whether he understood why Americans might be offended by Mohammed's trial, President Obama responded, "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him." (Our lawyer-president quickly backtracked, saying, "I'm not prejudging it, I'm not going to be in that courtroom. That's the job of the prosecutors, the judge and the jury.") The attorney general said he would not have brought the prosecution unless he was "confident that our outcome would be a successful one" and later added that "failure is not an option."
These statements by the nation's two top legal officers are unfortunate. The rules of the New York federal court where Mohammed will be tried presume that a "government agent" has likely interfered with a fair trial when he publicly offers "any opinion as to the accused's guilt or innocence or as to the merits of the case."
Mohammed's lawyers will no doubt reference all of this in a motion to dismiss on the basis of prejudicial pretrial publicity. But the statements' actual impact is marginal at most, coming against the background of 9/11 itself and Mohammed's own public acknowledgment of his role in the attacks.
For better or worse, the usual remedy for statements of this sort is not to dismiss the case but rather to redouble efforts to ensure that jurors don't consider the statements. (In a more extreme case, sanctions can also be brought against government officials who utter prejudicial statements, but that will not happen here.) The statements are nonetheless harmful because they diminish the appearance of fairness that is a major advantage of choosing a civilian trial over a military commission.
But they're not a deal breaker. As in the criminal prosecution of Zacarias Moussaoui (who was prosecuted in federal court for the same conspiracy Mohammed will likely be charged with), the impartiality of hundreds of potential jurors will probably be assessed with lengthy questionnaires, approved in advance by the judge and the lawyers for both sides. With patience and skill during jury selection, cautionary jury instructions, and careful jury supervision during trial, a judge should be able to find a dozen people and other alternates who can credibly stick to the facts and law presented at trial.
Detention After Trial
Embracing a position of the Bush administration, Holder recently claimed the power to detain Mohammed as an enemy combatant even if he is acquitted. The Department of Defense's general counsel, Jeh Johnson, made the same claim last summer. This "heads I win, tails you lose" strategy has led critics on the left and the right (Glenn Greenwald and Charles Krauthammer) to charge that Mohammed's prosecution will be a "show trial." It certainly seems contrary to the purposes of a trial to announce that the defendant will not be set free no matter what. But as both Bush and Obama lawyers have now concluded, military detention of a wartime enemy combatant, following criminal acquittal or the termination of a criminal sentence, is lawful.
Jack Goldsmith, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is a member of the Hoover Institution's Task Force on National Security and Law.